Why does the U.S. Chamber oppose small businesses harmed by BP disaster?

A giant, foreign, repeat-criminal enterprise inflicted massive economic injury on thousands and thousands of American businesses.

So why is the leading trade association for American business siding with the foreign, felonious enterprise?

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In the litigation over the BP oil disaster, the U.S. Chamber of Commerce has filed an amicus brief that sides with BP, against the interest of the many thousands of small and large businesses injured by the 2010 Deepwater Horizon disaster.

The Chamber of Commerce says it “represents an underlying membership of more than three million U.S. businesses and organizations of every size, in every industry, and from every region of the country.” Many of those businesses based in the Gulf Coast were devastated by the BP disaster – which President Obama correctly called the worst environmental disaster in American history – and they are part of class-action litigation against BP.

BP and the class entered into a settlement in 2012.

Later on, BP decided it didn’t like the terms of the deal to which it had agreed, and it has since sought to have the settlement agreement modified. Litigation over the settlement is ongoing.

Against this backdrop, there’s every reason to expect the U.S. Chamber of Commerce to seek to intervene in the deal – on the side of the business victims of BP’s criminal wrongdoing in the Gulf. After all, these U.S. businesses were injured by a foreign corporation (operating through its U.S. subsidiaries).

And, one might think, for the Chamber of Commerce, sanctity of contract is a fundamental principle. Or, more colloquially, one might expect that the Chamber is guided by the maxim that a deal’s a deal.

Not so, apparently.

In an amicus brief filed earlier this week, the Chamber (along with the National Association of Manufacturers and the U.S. Hispanic Chamber of Commerce) argued that the settlement agreement should be re-opened to ensure that greater certainty will attach to future class-action settlements. This is a claim that might generously be called paradoxical; or, less generously, self-contradictory. This is the core of the Chamber’s argument: revisit the terms of a voluntary agreement entered into by the most sophisticated bargaining party imaginable – undermining the certainty and predictability embodied in the notion that a deal’s a deal – to increase the confidence of future parties to class-action settlements.

At issue in the BP settlement is a provision establishing that, in filing damage claims, injured parties would show by objective criteria how their business was affected by the Deep Water Horizon disaster -- by demonstrating how their income fell after the catastrophe, with a corresponding recovery as the effects of the spill abated. This was an administrative convenience agreed to by both sides in the litigation, with eyes wide open. BP has since decided it objects to this provision and wants to replace it with unspecified, subjective criteria.

Looking solely at the issues at stake, it’s very hard to understand how the Chamber, which routinely argues that even unsophisticated and coerced parties should be bound by the terms of contract terms, embroiled itself in this dispute on behalf of BP.

Stepping back, though, it’s not much of a surprise at all. The Chamber frequently sides with Big Business against the interests of smaller companies, on topics ranging from antitrust enforcement to trade policy.

The functional operation of the Chamber on behalf of Big Business, not the three million firms it claims to represent, tracks its funding. A Public Citizen analysis found that more than half of the Chamber’s roughly $180 million funding in 2012 – the most recent year for which relevant tax filings are available – came from a mere 64 donors. Forty-three entities – presumably all large corporations – gave the Chamber at least $1 million.

An appeals court rejected BP’s request to re-open the settlement, and hopefully BP’s ongoing efforts to do so will fail as well. Certainly that’s what the businesses the Chamber claims to represent should be hoping for. They might also start hoping that the Chamber represents their broad interests, not just the parochial interests of the world’s largest multinationals.